PAR Names Top Five Sunshine Solutions

March 12, 2009

Sunshine Week (March 15-21, 2009) is a national initiative that highlights the importance of open government and freedom of information. Over the past several decades, PAR has recommended numerous ways to improve citizens’ access to government. Many of those recommendations have been adopted in recent years. However, much remains to be done to bolster transparency, promote open government and create the legacy of public trust Louisiana historically has lacked.

PAR repeatedly has identified deficiencies in Louisiana’s public records and open meetings laws. For instance, Louisiana has enacted a broad public records law as the general rule, but has burdened it with copious exceptions and scattered cross-references throughout the law. Further, Louisiana offers no meaningful remedy to citizens who are denied information unless they can afford legal counsel. The result is that average citizens have no idea what they are entitled to legally, custodians are often confused about which records are public and citizens who are denied access are forced to file a lawsuit to resolve the issue. And while Louisiana grants broad access to public meetings, certain important meetings are neither broadcast via the Internet nor archived in video format for future reference. This means that citizens around the state have no real access unless they can afford to travel back and forth to where the meeting is held.

Each year brings new battles over citizens’ rights to peer through the window of government. Few will forget the 2008 ethics session, where the new administration fought for increased disclosure and transparency from legislators but defended an overly-broad public records exception for the governor’s office. Most recently, the mayor of New Orleans destroyed many of his 2008 e-mails (public records), citing lack of computer storage space as the rationale for doing so. Additionally, the mayor consistently has ignored requests to award public contracts by transparent, competitive methods in open-meeting settings.

To improve public records access, state law should be clear, concise and self-contained; exceptions should be minimized; costs of records should be uniform at all levels of government; and a pre-trial mediation process should exist for those who are denied access to records. Likewise, public records and open meetings should be more accessible via the Internet to minimize the burden on citizens who want to view them. Finally, Louisiana should go the extra mile in financial transparency – requiring a robust online outlet for citizens to track where their tax dollars are being spent.

To further those goals, PAR recommends the following five sunshine solutions:

Minimize and clarify exceptions to the public records law. Current law allows certain types of information, no matter where they are housed, to be shielded from public view in order to protect the security and personal privacy rights of citizens and proprietary information of private businesses. These exceptions, based on the content of the record rather than who holds it, should be continued where they can be justified. However, carving out broad exceptions for records simply because they are held by a certain agency runs afoul of the original intent of the law. Blanket agency-based exceptions, such as the one that protects records in the custody or control of the governor’s office, are far too broad and should be eliminated or scaled back significantly. Additionally, the exceptions section of the public records law should be self-contained, providing the full description of all exceptions rather than references to other sections of law.

Establish consistent and reasonable costs for public records. State law requires that the Division of Administration (DOA) establish a uniform fee schedule for public records so that costs for records are reasonable and consistent throughout state government. The existing fee schedule ($.25 per page) applies to all executive branch agencies, unless the DOA approves an alternative schedule for an agency that has justified the need. However legislative and judicial branches of government are not bound by DOA’s fee schedule, nor are local governments. This shortcoming means that the Legislature, the courts and local agencies can charge any fee for public records they choose unless restricted elsewhere by rule or law. A citizen who feels that a fee is unreasonable or inconsistent has no remedy other than filing a lawsuit, which many people cannot afford to do. The fees established by DOA should apply to all state and local government entities unless a particular agency provides adequate justification for an alternative fee schedule.

Provide a pre-trial mediation process for public records disputes. Current law provides that citizens who are denied access to public records may institute legal proceedings and provides for legal fees and damages if the citizen prevails in the suit. However, legal battles are time consuming and intimidating for many citizens. A meaningful mediation process should be established to help citizens negotiate with governmental agencies that refuse to satisfy public records requests. The agency refusing access to public records should be required to participate if a citizen chooses to use the mediation process. The process could be established within the attorney general’s office since that entity is responsible for educating custodians and the general public on public records laws.

Expand online access to live and archived meetings. Not all public meetings are required to be broadcast live via the Internet or archived for citizens to access at a later date. Scores of state bodies do not offer any Internet access (video or audio format) to meetings whatsoever. Some of the more prominent ones that should offer online access to meetings include: the Board of Elementary and Secondary Education (committees and full board meetings); the Board of Regents (committees and full board meetings); the Board of Ethics (full board meetings and ethics hearings heard by the Division of Administrative Law); and the Public Service Commission. Granting online access to the work of such bodies will reduce the burden on citizens who want to be involved in their government but do not reside in the state’s capital city. Additionally, all documents to be discussed at open meetings (including notices, minutes from previous meetings, presentations and handouts) should be posted online, preferably in advance of the meeting, in an easily-downloadable format. Finally, open meetings laws should require public bodies to provide meeting notices via e-mail to citizens who request the service.

Bolster financial transparency. The new administration has attempted to improve access to public spending data with the advent of the Louisiana Transparency and Accountability (LaTrac) database. LaTrac allows citizens to see amounts budgeted by category and/or department, and the percentage of funds that have been expended during the current fiscal year. However, there remains a great deal of information that is not being reported on the LaTrac system. While some of the budget categories allow expenditures to be tracked down to the private-sector vendor providing a service or product, not all of the categories contain this level of detail. Moreover, there is no indication what product or service was provided for the expenditures and there is very little salary information available beyond summary totals by budget unit. Additionally, LaTrac does not provide any information regarding the nature of the business agreement between the state and the people and vendors receiving payment.

Citizens typically are concerned with three issues when tracking government’s use of dollars – which services the state is paying for; who the state chooses to provide services; and why and how the vendors are chosen. LaTrac is a good start toward financial transparency but it can be strengthened by including scanned copies of all public contracts and more detailed and consistent information on all expenditures.
For government to maintain integrity and promote public trust, it should operate openly and be fully accountable to citizens. Sunshine Week is designed to highlight the importance of open government and freedom of information. While Louisiana has made strides in recent years, much work remains to be done to create a fully transparent system where citizens have meaningful access to government. Implementing the solutions proposed above should thrust Louisiana forward as a leader in transparency.